The Supreme Court delivered a mixed ruling on Monday that will allow President Trump to implement his travel ban against six Muslim majority nations — but only for visitors lacking ties to the United States.
The court ruled that Trump may bar people from six majority Muslim countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — if they have no "bona fide" relationship to the U.S. Those that have established ties will be allowed to continue entering the country, which covers the majority of visitors from those countries.
More than 100,000 people legally entered the U.S. from the six countries in fiscal 2016, which ended last Sept. 30, according to State Department data.
Nearly 30,000 had immigrant visas, more than 25,000 arrived as refugees and thousands more came on student, diplomatic and research visas that require proof of a U.S. connection. All would be exempt from the ban under the court's decision.
The ruling means officials at the Department of Homeland Security and State will have to begin sorting through each application submitted by travelers from the six targeted countries to determine if they have enough of a link to the U.S. to enter.
The justices provided several examples to explain who may enter the country:
If U.S. citizens claim close relatives from one of the targeted countries, they will be able to do so.
If U.S. universities have accepted students from one of the targeted countries, the students will be able to enter the U.S. and start their studies.
If a U.S. business has given a job to a worker from one of the targeted countries, the worker will be able to do that job.
“In practical terms, this means that (the executive order) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States,” the court wrote.
Two federal appeals courts had blocked the entire ban from going into effect, one saying it violates constitutional protections for religion and the other saying it violates immigration law.
The Supreme Court ruled that a complete ban went too far, and it only blocked that part affecting those with "standing" to challenge Trump's executive order in U.S. courts.
The court said Trump's order may have violated the rights of U.S. citizens, universities and businesses by preventing them from bringing in their relatives, students and employees from overseas.
But the court concluded that foreigners who have no ties to the U.S. cannot argue, on their own, that constitutional protections apply to them. They're not U.S. citizens, U.S. students or U.S. employees, so the protections established in the Constitution do not apply to them.
The court ruled that the administration's main argument — that the travel ban is needed to improve vetting procedures to stop would-be terrorists from entering the country — is at its "peak" when applied to foreigners who have no ties to the U.S.
"The interest in preserving national security is, 'an urgent objective of the highest order,'" the justices wrote. "To prevent the Government from pursuing that objective by enforcing (the travel ban) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else."
Justice Clarence Thomas issued a warning about creating such an arrangement, warning that a "flood of litigation" will soon follow as the administration tries to walk the line established by the Supreme Court.
"I fear that the Court's remedy will prove unworkable," Thomas wrote. "Today's compromise will burden executive officials with the task of deciding — on peril of contempt — whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country."
The earliest the administration can begin enforcing the portions of the travel ban allowed by the Supreme Court is Thursday.
Washington state reacts to Supreme Court decision
"I think what the Supreme Court did here is basically split the baby," said Emily Chiang, legal director of the ACLU of Washington State.
Chiang was involved in one of the early challenges against the original travel order, representing refugees, as well as students with visas.
The University of Washington currently has 157 students from the countries affected, according to her office.
"Just this morning I got an email from a very concerned student from UW who is currently visiting family and is very worried they won't be allowed back in," said Chiang.
However, the Supreme Court said Monday that students would be protected from the travel restrictions, along with those with work visas or family times.
Only foreign nationals from the six countries designated who lack a "bona fide relationship with a person or entity in the United States" are subject to the temporary suspension.
Immigration advocate Jorge Baron says this could include tourists and business people coming to the U.S. for conventions.
However, he says most of the people the Northwest Immigrant Rights Project is trying to help should not be impacted.
“We’re working mostly with people who already have some family ties here. The decision won’t mean any change from what was happening yesterday or two days ago,” Baron said.
Of the nearly 13,000 immigrants who came to the U.S. from Yemen last year, about 97 percent of them had family in the country, according to an NBC News analysis of State Department data.
Still, advocates are concerned about how immigrants, particularly refugees who have had to leave personal belongings behind, can prove familial relationships when applying for visas.
“There’s going to be this additional level of questioning now: do they meet the criteria? They’re going to have to submit additional evidence. There’s additional uncertainty about whether they’re going to turn me away from the airport as well. So I think there’s still concern from the community about how this is going to play out,” Baron said.
"Legally, it's an important victory," said former Washington State Attorney General Rob McKenna. "A unanimous Supreme Court has said, ‘the President has real power here, real power under federal law and the constitution to decide who can come into the country and who can’t, and we’re going to allow the travel ban to go into effect under a narrower basis."
"Allowing people in on a case by case basis, which is what we’re talking about here, when someone comes to lecture at the University of Washington is exactly the kind of case by case determination that even the DOJ and White House said they were willing to entertain," McKenna continued.
However, what remains unclear, according to Chiang, is how the interim opinion by the nation's high court will be interpreted and implemented on the ground.
"How close of a relative does it need it to be? If it’s your third cousin, twice removed does it count? And who is going to be making these decisions?" said Chiang, who said her organization will start monitoring activity at airports when the order is partially reinstated.
"Is it going to be up to the whim of an individual border patrol agent, or is the administration or someone else going to issue clearer guidance? Because mostly what we’re we’re worried about, frankly, is the same chaos that enveloped our country’s airports after the first executive order," Chiang continued.
It was Washington state's case that initially blocked the President's first order. Hawaii's case stopped the second, revised version, leading to the legal debate now in the hands of the Supreme Court this October.
"What the Department of Justice needs to show is that there are legitimate national security concerns around what they're deeming to be inadequate screening and vetting procedures in these six countries, and what the state AG and others who opposed the travel ban need to do is to show that, if they can, that these the national security concerns aren't real, and that this is really about keeping a campaign promise," said McKenna.
The former state attorney general said that even though Washington's suit is not the one before the Supreme Court, AG Bob Ferguson's Office will likely still play an indirect role.
"They developed a lot of expertise and a lot of the main arguments in this case from that AG's office, so I would be surprised if they weren't part of some of the strategizing around the case with the main parties who are opposing the ban, and I would be very surprised if they didn't try to come in as a friend of the court," said McKenna.
Ferguson was traveling on Monday but issued a statement.
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